The highest court of the land scored a victory for your privacy versus the cops this week, but the worst threats of digital surveillance remain standing. The good news? These justices aren't backing down anytime soon.
The court ruled Monday in US v Jones that cops who'd placed a GPS tracking device on a suspected drug dealer's car—and followed him for almost a month—violated the man's 4th amendment rights. Basically, as of this week, police can no more follow you around with a satellite bug than they can enter your house without a judge's permission; both are considered unreasonable searches. In and of itself, this is a solid but narrow ruling. But the implications are humongous; the court said loudly, with nine voices at once, that electronic privacy won't be breached lightly. Back off, cops.
The loudest of the privacy klaxons is Justice Sotomayor, explains Prof. Woodrow Hartzog, Assistant Professor of Law at Samford University and an Affiliate Scholar at Stanford Law's Center for Internet & Society. Sotomayor agrees that warrantless GPS tracking is constitutionally icky, but thinks the bigger threat remains unaddressed; there are still plenty of ways for the government to follow you in our foggy, unctuous digital age.
Beyond electronic monitoring via systems like OnStar, Hartzog singles out two tech landmines before our private lives: "Facial recognition technology cuts to the heart of privacy in public, and the majority opinion doesn't guard against it, and cloud computing cuts to the heart of the third party doctrine." The third party doctrine being a facet of constitutional amendment law that essentially says if you voluntary make information public, it doesn't fall under the 4th amendment. Problematic, to say the least, in the era of Foursquare. "We now transmit so much information about ourselves, including our exact location at any given time, to third parties, the old cases create a loophole that easily allows the government to track us 24-7 as well as learn tremendous amounts of other sensitive information about us," agrees University of Michigan Law Professor Dave Moran.
And Sotomayor sees the same problem. It's getting easier to spy:
Physical intrusion is now unnecessary to many forms of surveillance... In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance... GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.
What does that mean? That the government doesn't need to touch your car to track it, and the technological ease of locating everyone, all the time, can comprise an eerily intimate portrait of who we are in our personal time. The problem? The ruling in question does nothing to fix this.
But Sotomayor isn't giving up—she and the rest of the court are as determined as they are concerned. Her opinion shows that "the fight for privacy in public is still viable," says Hartzog.
More than just a sign of hope, the vehement eyebrow-raising of the justices is a clear warning, Hartzog argues: based on the "unanimity of the decision (which is rare) and the powerful concerns by all of the justices," the ruling "tells businesses and users of tech that locational data is sensitive data...it's the kind of thing that you should be extremely careful both revealing and collecting and using."
Businesses, and our government, too: "It's difficult to look at this opinion as anything but recognition that ubiquitous geolocation surveillance raises heightened concerns," says Hartzog. "I think it's tough to have a 9-0 decision without it being seen as some kind of a warning to make sure that [police are] going about surveillance the right way." The entire government has just been put on watch: "Any police agency engaging in warrantless tracking does so at its peril until the law gets settled in this area," concurs Moran. The supreme court, ultimate arbiters of all law in the United States, have a clear message for those who enforce the law: don't you dare push it.
Battles over sharing and following lie ahead, and will have to be wrangled on their own. But for now, the gesture is enough—Clint Eastwood putting his hand on his pistol is enough to make most stand down. Sotomayor's sharp diligence should spook overstepping feds until there are letters on pages keeping us safe, not just the scowling of the court. But for now, thank you, robed ones—it's good to know you have our backs.